FACT CHECK: Is The Appointment Of Acting Attorney General Matthew Whitaker Unconstitutional?

Brad Sylvester | Fact Check Editor

Attorney George Conway III and Neal Katyal, who served as acting solicitor general under former President Barack Obama, authored an opinion piece in The New York Times arguing that President Donald Trump’s appointment of Acting Attorney General Matthew Whitaker is unconstitutional.

“Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal,” reads the Nov. 8 article.

Verdict: Unsubstantiated

Legal experts are divided on the constitutionality of Whitaker’s appointment. The Justice Department (DOJ) Office of Legal Counsel, which provides legal advice to all agencies within the executive branch, released an advisory opinion Wednesday stating that the appointment of Whitaker is legal.

Fact Check: 

Jeff Sessions resigned as attorney general at the request of the president, the day after the midterm elections. Trump appointed Whitaker, Session’s chief of staff, to serve as acting attorney general in his place.

Conway and Katyal argue that Whitaker’s appointment violates Article II, Section 2, Clause 2 of the Constitution, also known as the Appointments Clause. The clause states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

Senate confirmation is required for principal officers like the attorney general, and Conway and Katyal argue that Whitaker, as acting attorney general, is not exempt from Senate approval. They write that Trump could have easily chosen the deputy attorney general or the solicitor general, who are both Senate confirmed, to legally step in as acting attorney general instead.

“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design,” they write.

John Yoo, a law professor at the University of California- Berkley who worked in former President George W. Bush’s administration, also believes the appointment is unconstitutional.

“The Constitution says that principal officers must go through appointment with the advice and consent of the Senate,” Yoo told Axios. “In Morrison v. Olson, the Supreme Court made clear that the Attorney General is a principal officer. Therefore, Whittaker [sic] cannot serve as acting Attorney General despite the Vacancies Act (which does provide for him to be acting AG) – the statute is unconstitutional when applied in this way.”

Yoo refers to the Federal Vacancies Reform Act, a law passed in 1998 that specifies the requirements for temporarily filling vacancies in the executive branch for positions that require Senate confirmation. One part of the law allows the president to appoint a senior “officer or employee” within the same executive agency as the vacancy so long as he or she has served in the agency for at least 90 days and has reached a certain government pay rate.

The DOJ released a memo Wednesday advising that Whitaker’s “designation as Acting Attorney General accords with the plain terms of the Vacancies Reform Act, because he had been serving in the Department of Justice at a sufficiently senior pay level for over a year.”

Stephen Vladeck, a professor of law at the University of Texas, also believes the appointment is constitutional. In an opinion piece he authored for The Times, he argued that the 1898 Supreme Court case United States v. Eaton settles the matter.

“In an 1898 decision, United States v. Eaton, the Supreme Court rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer,” wrote Vladeck. “So long as an inferior officer is exercising the duties of the principal officer ‘for a limited time, and under special and temporary conditions,’ the court said, he ‘is not thereby transformed into the superior and permanent official.'”

An “inferior officer” refers to an official who Congress may allow to be appointed without Senate approval. Most officers working in executive agencies are “inferior officers.”

Vladeck says there are substantive limits on temporary appointees filling in for principal officers. Another provision of the Federal Vacancies Reform Act stipulates that these appointees can serve no more than 210 days.

Alan Dershowitz, an attorney and Harvard law professor emeritus, came to a similar conclusion.

“I think it is constitutional if for a relatively short interim period while a new AG is being selected. If he remains acting for months, a constitutional issue emerges,” Dershowitz told The Daily Caller News Foundation in an email.

Following the removal of Sessions from office, Trump tweeted that “a permanent replacement will be nominated at a later date,” although it’s unclear when exactly this will be.

The state of Maryland initiated legal action Tuesday in an attempt to block Whitaker’s appointment on constitutional grounds.

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Brad Sylvester

Fact Check Editor
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